The Burger Court Opinion Writing Database

Transcription

1 The Burger Court Opinion Writing Database Miami Herald Publishing Co. v. Tornillo 418 U.S. 241 (1974) Paul J. Wahlbeck, George Washington University James F. Spriggs, II, Washington University in St. Louis Forrest Maltzman, George Washington University

2 2o: Mr. Justice Doug1a3 Mr. Justice Brennan 3 Mr. Justice Stewart Jueti.c2 nite,t11.cte Fr 1st ttuirr cm: SUPREME COURT OF THE UNITEIVSTATEg: * No Recil'eulated: The Miami Herald Publishing Company, A Division of Knight Newspapers, Inc., Appellant, v. Pat L. Tornillo, Jr. On Appeal from the Supreme Court of Florida. [June 1974] MR. CHIEF JUSTICE BURGER delivered the opinion of cn the Court. We set this case for plenary consideration to determine the constitutionality under the First and Fourteenth Amendments to the Constitution of a state statute which grants to an electoral candidate a right to demand from a newspaper which criticizes the condicn date's character or official record equal space in the t-) newspaper to reply to the charges made t1 I 1-4 In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' 1-4 collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 107'7, appellant printed editorials harshly critical of appellee's candidacy.' In The text of the September 20, 1972, editorial is as follows: "The State's Laws And Pat Tornillo "LOOK who's upholding the law! 0 "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has cn cn ti

3 Aumint Qjrntrt IIf tilt Pritetr,*tatto axfirixtotart, Q. vvx,g CHAMBERS OF THE CHIEF JUSTICE June 4, 1974 Re: Miami Herald Publishing Co. v. Tornillo Dear Bill: You will get a "honed" version of the above today. On the final I will be glad to amplify to meet your memo. Regards, Mr. Justice Brennan

4 :51tprzatt (frart of titt pate : puzirktujiazt, p. (c. 2a14g June 4, 1974 Re: No Miami Herald Publishing Co. v. Tornillo MEMORANDUM TO THE CONFERENCE: The first draft of the opinion in this case inadvertently went out prematurely. Enclosed is a revised draft with stylistic changes throughout but with no changes of substance in any respect. Please disregard the first copy sent yesterday. Regards,

5 end DRAFT. To: Mr. Justice Douglas Mr. Justice Brennan/ Mr. Justice Stewart Mr. Justice White Mr. Justice Marshall Mr. Justice Blackuu-: Mr. Justice Powell Mr. Justice Rehnquii17 From: Unief JusticE SUPREME COURT OF THE UNITED STA0Talated: No Recirculated: ' - The Miami Herald Publishing Company, A Division of Knight Newspapers, On Appeal from the Su- Inc., Appellant, preme Court of Florida. Pat L. Tornillo, Jr. [June, 1974] MR: CHIEF JUt3TICE BURGER delivered the opinion of the Court. The issue in this case is whether a state statute grantjug a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper, viofates the guarantees of a free press, 2 en In the fall of 1972, appellee. Executive Director of the Classroom Teachers Association, apparently a teachers' collective-bargaining agent. was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials harshly critical of appellee's candidacy.' In 1- The text of the September 20, 1972, editorial is as follows; "The State's Laws And Pat Tornillo "LOOK who's upholding the law! "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking 'the knowledge to be a legislator,

6 4+, 0)0%)1CA 3rd DRAFT SUPREME COURT OF THE UNITED STATIS To: Mr. Justice Douglas Mr. Justice Brennan Mr. Justice Stewart Mr. Justice White Mr. Justice Marshall Mr. Justice Blackmun Mr. Justice Powell Mr. Justice Rehnquis- From: The unlef Justice 11. eu lated : i No_ JUN A ' - Recirculated; t t The Miami Herald Publishing Company, A Division of Knight Newspapers, On Appeal from the Su- Inc Appellant, preme Court of Florida, Pat L. Tornillo. Jr. c- c t- cr. (;June i'vfa. CHIEF justice BURGER delivered the opinion of the Court, The issue in this case is whether a state statute grant- Ri - ing a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper, violates the guarantees of a free press,.1 a the fall of 1972, appellee, Executive Director of the 1-1 Classroom Teachers Association, apparently a teachers' collective-bargaining agent, was a candidate for the cr2 Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee's candidacy.' In 1-4 t-z The text of the September 20, 1972, editorial is as follows: "The State's Laws And Pat Tornillo LOOK who's upholding the law!,21 "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking 'the knowledge to be a legislator, to to

7 i:frtutt Olourt of tilt 'Pita Atatto litaffitin#014 20pkg C HAM BERS OF THE CHIEF JUSTICE June 19, 1974 (held for Miami Herald Publishing Co. v. Tornillo) MEMORANDUM TO THE CONFERENCE: Only one case, Bigelow v. Virginia, No , was held for Miami Herald. Appellant Bigelow is the managing editor of a Charlottesville, Virginia, newspaper. He was fined for printing an advertisement in February 1971 which stated that abortions were then legal in New York and offering "immediate placement in accredited hospitals and clinics at low cost." New York City telephone numbers and an address were supplied for those seeking help or information. The statute under which appellant was prosecuted made it a misdemeanor for any person "by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, [to] encourage or prompt the procuring of abortion or miscarriage." The statute was amended, effective July 1, 1972, while the case was pendins a ore the state court and now provides: "If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or through the use of a referral agency for profit, or in any other manner, encourage or promote the processing of an abortion or miscarriage to be performed in this State which is prohibited under this article, he shall be guilty of a misdemeanor." In affirming appellant's conviction on direct appeal the Virginia Supreme Court rejected appellant's claim that the statute, as applied and on its face, violated the First Amendment. Appellant appealed to

8 this Court, No , and, after holding the case for Pittsburgh Press v. Comm'n on Human Relations, 413 U.S. 376 (1973), we vacated and remanded for further consideration in light of Roe v. Wader 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). 413 U.S. 909 (1973). See Mr. Justice Powell's "hold" Memorandum to the Conference of June 16, The Virginia Supreme Court affirmed on remand stating that the First Amendment issue posed by this case is totally distinguishable from the abortion case. The Court's opinion in Miami Herald would not seem to bear upon any disposition that we might wish to make of this appeal. The amendment of the statute would, in my view, probably preclude a First Amendment overbreadth attack on the statute, see Allee v. Medrano, No , concurrence and dissent, slip op., p. 13 n. 9. However, the as-applied attack on the statute raises possibly significant questions under Roe and Doe and Pittsburgh Press, which questions remain unresolved after Lehman v. City of Shaker Heights, No At most, I would consider "joining three" to note. Regards, Ar2

9 sl8m asai vo 4,4.ariloraroii. To: Mr. j usce Douglas Mr. Brennan Mr. M:ite Stewart Mr. J:t-ce White Mr.,7:7L7-t:ce Marshall Mr, Jstice Blackmun Mr. Jastice Powell Mr. Justice Rehnquis- 4th 1DRAF'r From: y^yjustice SUPREME COURT OF THE UNITED SicATEKia ced: No, Rec irculated. is7 The Miami Herald Publishing Company, A Division of Knight Newspapers, Inca, Appellant, On Appeal from the Su. preme Court of Florida. Pat L. Tornilloi June, 1974] Ma. CHIEF JUSTICE BUEGER delivered the opinion of the Court. The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper, violates the guarantees of a free press. 7 In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee's candidacy.' In The text of the September 20, 1972, editorial is as follows: "The State's Laws And Pat Tornillo LOOK who's upholding the law! "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking 'the knowledge to be a legislator,

10 , aprinut Qottrt of titc).inite, tittr9 3:tra9tTintott. cc. 21_1.754,3 CHAMBERS OF JUSTICE WILLIAM 0. DOUGLAS June 3, 1974 Dear Chief: Please join =e in your opinion in , MIAMI BERALD PUB. CO. v. TORNILLO. WILLIAM O. DOUGLAS The Chief Justice cc: The Conference

11 nr.ritunaulamm recurs ini UULLEUT1ONS OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS V: "- 41,14:1*. of5.

12 1st DRAFT SUPREME COURT OF THE UNITED STATES No r, -_.7_=1741 The Miami Herald Publishing Company, A Division of Knight Newspapers, Inc., Appellant, On Appeal from the Supreme Court of Florida. Pat L. Tornillo, Jr. [June, 1974] MR. JUSTICE BRENNAN, concurring. I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. See generally Note, Vindication of the Reputation of a Public Official. 80 Harv. L. Rev. 1730, (1967).

13 2nd DRAFT SUPREME COURT OF THE UNITED STATES No The Miami Herald Publishing Company, A Division of Knight Newspapers, Inc., Appellant, v. Pat L. Tornillo, Jr. On Appeal from the Supreme Court of Florida. [June, 1974] MR. JUSTICE BRENNAN, with whom MR. JUSTICE REHNQUIST joins, concurring. I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. See generally Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730, (1967).

14 Ouvrtatt 0.ourt of titt lartiteti, States Vaollington, (q. zeg)ig CHAMBERS OF JUSTICE POTTER STEWART June 4, 1974 No Miami Herald Publishing Co. v. Tornillo Dear Chief, I am glad to join your opinion for the Court in this case. It is possible that I may write a brief concurring opinion. Sincerely yours, t The Chief Justice Copies to the Conference

15 Circ-d1;_at 11 No The Miami Herald Publishing Co. v. Tornillo Mr. Justice White, concurring. ' aG2d: The Court today holds that the First Amendment bars cl a State from requiring a newspaper to print the reply of a c candidate for public office whose personal character has r m n been criticized by that newspaper's editorials. According 1..i to our accepted jurisprudence, the First Amendment erects o )-, a virtually insurmountable barrier between government and z m the print media so far as government tampering, in advance o,t of publication, with news and editorial content is concerned. New York Times Co. v. United States, 403 U.S m (1971). A newspaper or magazine is not a public utility subject to "reasonable" governmental regulation in matters affecting the exercise of journalistic judgment as to what I m shall be printed. Cf. Mills v. Alabama, 384 U.S. 214, 220 n PI (1966). We have learned, and colitaaa to learn, from what H ed we view as the unhappy experiences of other nations where,-3 c ti P i government has been allowed to meddle in the internal edi- = 1-1 torial affairs of newspapers. Regardless of how benefi- c 1-1 cent-sounding the purposes of controlling the press might m).-, be, we prefer "the power of reason as applied through o public discussion,"if and remain intensely skeptical about ẓ those measures that would allow government to insinuate r 1-4 itself into the editorial rooms of this nation's press. w i "Whatever differences may exist about interpretations of the First Amendment, there is o,,/ '.4 practically universal agreement that a major n purpose of that Amendment was to protect the free o z discussion of governmental affairs. This of n course includes discussion of candidates, strucm tures and forms of government, the manner in m which government is operated or should be operated, 1/ Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

16 To: The Crief Justice Dol:glas Yr. 1st DRAFT From: Thlt:3, J. SUPREME COURT OF THE UNITED STATES,.,:;: _ No The Miami Herald Publishing Company, A Division of Knight Newspapers, Inc., Appellant, v. Pat L Tornillo, Jr. On Appeal from the Supreme Court of Florida, [June, 1974] Mn. JUSTICE WHITE, concurring. The Court today holds that the First Amendment bars a State from requiring a newspaper to print the reply of a candidate for public office whose personal character has been criticized by that newspaper's editorials. According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the print media so far as government tampering, in advance of publication, with news and editorial content is concerned. New York Times Co. v. United States, 403 S. 713 (1971). A newspaper or magaizne is not a public utility subject to "reasonable" governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed. Cf. Mills v, Alabama, 384 U. S. 214, 220 (1966). We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficientsounding the purposes of controlling the press might be, we prefer "the power of reason as applied through public

17 Attprtutt QJourt Mates Washington. p. 2.17p13 CHAMBERS OF JUSTICE THURGOOD MARSHALL June 13, 1974 Re: No The Miami Herald Publishing Co. v. Tornillo Dear Chief: Please join me. ti 3 ti c-c The Chief Justice cc: The Conference c1.1 O z CT: C/3 /11 O 1-4 txj O 0

18 g5uvrentt (Court of tilt Anita Atatto litttoltingott, 2og43 CHAMBERS OF JUSTICE HARRY A. BLACKMUN June 4, 1974 Dear Chief: Re: No Miami Herald Publishing Co. v. Tornillo Please join me. Sincerely, The Chief Justice Copies to the Conference

19 **mut Court of tfit litrattrjkafts Ortsitingtort, gt. QT. zug4g CHAMBERS OF JUSTICE LEWIS F. POWELL,JR. November 20, 1973 A-504 The Miami Herald Publishing Co. v. Tornillo MEMORANDUM TO THE CONFERENCE: I am sending to each of you with this Memorandum: (i) Application for Stay of Mandate in the above case; Jurisdictional statement filed on behalf of the applicant; (iii) Memorandum of November 20 from Jim Ginty which summarizes the facts, decision of the Florida Supreme Court, and the contentions of the applicant. After conferring with the Chief Justice, I have today signed an Order in my capacity as Circuit Justice staying the application pending further order of this Court. In view of the importance of the issue, I am referring the application to the Court for consideration at our Conference on November 30.

20 November =WE The Miami Herald Publis (No ) itappticati" MATZ SrMAT/X3111 A Florida CircuitCourt held mesonst tutional a Florists criminal statute which makes it a dommanor far *.newspaparrefuse to publish a reply by a critical of the candidate publia in the newspaper. back to the trial coo SC stayed its mandate to seek review "and obtain any L`asr F,A.CTS: legislature, two editorials refused and re relief seeking to enforce by provi case The applicant ha may make the in the same kind such reply, provided. sue more space than the matter r

21

22 complabit for an has been held, sad hie

23 ry

24 November 20, 1973 Dear Chief: A-504 (No ) The Miami Herald Publishing Co. v. Tornillo The attached application for a stay of mandate has been filed with me as Circuit Justice. The Florida Supreme Court stayed its mandate through today to allow an application to be made to us. Thus I am inclined to act today unless you think otherwise. Also, I am inclined to grant a stay pending action bn the application by the full Court (at our next Conference). As you will see from Jim Ginty's memo the case raises a major question of first impression. I am satisfied that there will be at least four votes to grant. I will call you early this afternoon to discuss this, if convenient with you. Sincerely, The Chief Justice lfp/ss Enc.

25 ;:^5warmt purl of ti Priftb.,;-5;tafro?basking-fan, urt. zrrgitg CHAM BERS OF OSTICE LEWIS F. POWELL, JR. June 6, 1974 No Miami Herald v. Tornillo Dear Chief: Please join me. Sincerely, The Chief Justice lfp/ss cc: The Conference

26 1.14Tr.mt.e (C t-nrt 2,1ritts.btatez 4rgtarc, p. L g C HA,,BF.PS OF JUSTICE WILLIAM H. REHNQUIST June 6, 1974 Re: No Miami Herald v. Tornillo Dear Chief: Please join me in the opinion for the Court you have prepared in this case. Sincerely, The Chief Justice V Copies to the Conference

27 (court of Hie Atiftti taco Itraolriatgfint, cfr. arpij CHAMBERS OF JUSTICE WILLIAM H. REHNQUIST June 10, 1974 Re: No Miami Herald v. Tornillo Dear Bill: Please join me in your concurring opinion in this case. Sincerely, vralv- Mr. Justice Brennan Copies to the Conference